Section 20

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Section 20: Trade secret protection

Section 20. (A) If a toxics user, required to submit to the department a report, plan summary or other document, believes that disclosing information in that document required by this chapter will reveal a trade secret, he may file with the department a trade secret claim as herein provided. A toxics user making a trade secret claim shall submit two copies of the required document to the department, one with the information for which a trade secret claim is being made which conceals that information, and one in an envelope marked ''Confidential'' containing the information for which a trade secret claim is being made, which the department, during the pendency of the trade secret claim, shall keep in the secured storage area as referenced in this section. Any toxics user concealing the specific chemical identity of any toxic or hazardous substance shall, in the place on the nonconfidential copy where the chemical identity would normally be included, include the generic class or category of the toxic or hazardous substance.

(B) A toxics user is entitled to conceal information under this section only if such toxics user:

(1) Claims that such information is a trade secret, on the basis of the factors enumerated in subsection (C); and

(2) Includes in the envelope marked ''Confidential'' an explanation of the reasons why such information is claimed to be a trade secret, based on the factors enumerated in subsection (C), including a specific description of why all such factors apply.

(C) No toxics user required to submit information under this chapter may claim that the information is entitled to protection as a trade secret under this section unless such toxics user shows each of the following:

(1) Such toxics user has not disclosed the information to anyone else, other than a member of a local emergency planning committee as defined by EPCRA, an officer or employee of the United States or a state or local government, an employee of such toxics user, or anyone who is bound by a confidentiality agreement, and such toxics user has taken reasonable measures to protect the confidentiality of such information and intends to continue to take such measures; and

(2) The information is not required to be disclosed, or otherwise made available to the public under any other federal or state law; and

(3) Disclosure of the information is likely to cause substantial harm to the competitive position of such toxics user.

(D) As soon as practicable after the date of enactment of this chapter, the commissioner shall promulgate regulations to implement this section guided to the extent practicable by comment b to Section 757 of the Restatement of Torts.

(E) Any resident of the commonwealth may petition the commissioner for the disclosure of any information which is claimed as a trade secret under this section by specifying in the petition the information sought to be disclosed. The commissioner may, in the absence of a petition under this subsection, if he has reason to believe that the information concealed may not be a trade secret, initiate a determination to be carried out in accordance with subsection (F).

(F)(1) Within sixty days after the date of receipt of a petition under subsection (E), or upon the initiative of the commissioner, the commissioner shall review the explanation filed by a trade secret claimant under subsection (C) and determine whether the explanation presents assertions which, if true, are sufficient to support a finding that the information concealed is a trade secret.

(2) If the commissioner determines pursuant to subsection (F)(1) that the explanation presents assertions which, if true, are sufficient to support a finding that the information concealed is a trade secret, the commissioner shall, by certified mail, notify the trade secret claimant that he has thirty days to supplement the explanation with detailed information to support a finding that the information concealed is a trade secret.

(3) If the commissioner determines, after receipt of any supplemental supporting detailed information under subsection (F)(2), that the information concealed is a trade secret, the commissioner shall, by certified mail, so notify the trade secret claimant and the petitioner, if any. The petitioner, if any, may within thirty days seek judicial review of the determination. The commissioner shall after final adjudication immediately return to the trade secret claimant all supplemental supporting detailed information submitted concerning the validity of the trade secret claim. All such information shall be kept in the secure storage area pursuant to this section while the claim is pending. The petitioner, if any, shall not be permitted to have access, except as approved by the court. In entering any order approving access by the petitioner, the court shall consider the need for the entry of an appropriate protective order restricting the use or further disclosure of the confidential information.

(4) If the commissioner determines, after receipt of any supplemental supporting detailed information under subsection (F)(2), that the concealed information is not a trade secret, the commissioner shall, by certified mail, notify the trade secret claimant. The trade secret claimant may within thirty days request an adjudicatory hearing on the commissioner's determination. A timely request for an adjudicatory hearing under this subsection shall act as an automatic stay of the commissioner's determination pending completion of the adjudicatory hearing. A trade secret claimant aggrieved by the department's final decision upon said adjudicatory hearing may within thirty days seek judicial review pursuant to section fourteen of chapter thirty A, during which time the information shall remain confidential. Any court in considering a motion for a temporary restraining order or preliminary injunction to enjoin release of such information shall presume that release would cause irreparable harm to the trade secret claimant.

(5) If the commissioner determines pursuant to subsection (F)(1) that the explanation presents insufficient assertions to support a finding that the information concealed is a trade secret, the commissioner shall, by certified mail, notify the trade secret claimant that he shall have thirty days in which to request an adjudicatory hearing, or, upon a showing of good cause, to amend the original explanation by providing supplemental assertions to support the trade secret claim.

(6) If the commissioner does not reverse or modify his determination under subsection (F)(1) after an adjudicatory hearing or an examination of any supplemental assertions under subsection (F)(5), the commissioner shall, by certified mail, so notify the trade secret claimant and the trade secret claimant shall have thirty days in which to file for judicial review of the determination. A trade secret claimant aggrieved by the commissioner's final decision may within thirty days seek judicial review pursuant to section fourteen of chapter thirty A, during which time the information shall remain confidential. Any court in considering a motion for a temporary restraining order or preliminary injunction to enjoin release of such information shall presume that release would cause irreparable harm to the trade secret claimant.

(7) If the commissioner reverses or modifies his determination under subsection (F)(1) after an appeal or an examination of any supplemental assertions under subsection (F)(5), the procedures under subsections (F)(2) through (F)(4) shall apply.

(G) Information certified to by an appropriate official of the United States as necessarily kept secret for national defense purposes shall be accorded the full protections against disclosure as specified by such officials in accordance with the law of the United States.

(H) Anyone who is not authorized to have access to, or who is not authorized to disclose information submitted to the department under the authority of this chapter, but who knowingly and willfully uses, divulges or discloses to anyone else such information in a manner not authorized by this chapter, shall be in violation of this chapter and subject to the penalties established in subsection b of section twenty-one of this chapter.

(I) With respect to concealed information for which a trade secret claim has been made but not finally denied the department may;

(1) Use such information, aggregated with other information in such a manner as to maintain the confidentiality of the information claimed to be a trade secret, to carry out responsibilities under this chapter. The department may include such aggregated information in the publicly available database required by this chapter.

(2) Disclose such information when the department is required to do so to comply with federal law or regulation, but only to the extent required by the federal law or regulation, and so long as the department gives notice of the requirement to the toxics user prior to complying.

(J) The department shall establish and maintain a single secure storage area for confidential materials and information. Materials and information for which trade secret claims have been made and related supporting materials, and information for which such claims have been finally adjudicated in favor of the claimant, shall be kept in the secure storage area and may only be removed in accordance with the provisions of this section. Materials and information for which such claims have been finally adjudicated against the claimant may be permanently removed from the secure storage area.

A chief document control officer designated by the commissioner shall be responsible for controlling access to the secure storage area and its contents. The commissioner may designate no more than five department personnel at any one time as document control officers who may have access to the secure storage area. Personnel and authorized agents of the department who require information contained within the secure storage area for the effective performance of their duties may, upon request to a document control officer, examine documents containing such information within a secure area adjoining the secure storage area. Immediately upon completion of such examination, or at the close of the business day, whichever is first, such personnel shall return the documents to a document control officer for immediate return to the secure storage area. A hearing officer or department counsel in an adjudicatory hearing in which such documents or information are in issue, or other department personnel authorized in writing by the commissioner to do so, may remove such documents from the secure storage area when necessary for preparation and conduct of such adjudicatory hearing or effective performance of their duties, provided that the hearing officer, counsel, or other personnel shall at all times retain control of such documents and information through direct physical observation or deposit in a locked room, file, or other secured area. Immediately upon completion of the hearing or other required use, the documents shall be returned to a document control officer for immediate return to the secure storage area. No copies of such documents or information may be made except by a document control officer. Copies shall be considered equivalent to original documents for purposes of this section. Any notes concerning such information made by department personnel shall be treated as confidential under this section. Department personnel or authorized agents who violate the procedures required by this paragraph shall be subject to disciplinary action. The council shall annually verify the department's compliance with the requirements of this subsection.

(K) The provisions of this section shall not apply to the disclosure of emissions data.